JK v Department of Transport Infrastructure Development - [2009] NSWADT 307

CITATION: JK v Department of Transport Infrastructure Development [2009] NSWADT 307

DIVISION: General Division

PARTIES:
APPLICANT
JK
RESPONDENT
Department of Transport Infrastructure Development

FILE NUMBER: 083297

HEARING DATES: 26 August 2009

SUBMISSIONS CLOSED: 3 September 2009

DATE OF DECISION:
10 December 2009

BEFORE: Molony P - Judicial Member

LEGISLATION CITED: Privacy and Personal Information Protection Act 1998
Health Records and Information Privacy Act 2002
Passenger Transport Act 1990
Passenger Transport Regulation 2007

CASES CITED: KJ v Wentworth Area Health Service [2004] NSWADT 84

REPRESENTATION:
APPLICANT
G Wright, barrister
RESPONDENT
M Allars, barrister

ORDERS: The Tribunal orders that the Ministry of Transport perform HPP1 and HPP2 with respect to its collection of personal information for the purposes of assessing the medical fitness of applicants for, and holders of, authorities to drive public passenger vehicles.

REASONS FOR DECISION

BACKGROUND

1 JK is bus driver who is required to submit a completed Medical Assessment Form in order to obtain a renewal of his authority to drive a public passenger vehicle. By letter dated "mayday 2008", received by the Ministry of Transport’s (‘the MoT’) on 12 May 2008, JK sought internal review of the MoT’s collection of data in its Medical Assessment Form, claiming that it was in breach of the Privacy and Personal Information Protection Act 1998 (‘the PPIPA’) and the Health Records and Information Privacy Act 2002 (‘the HRIPA).

2 A determination was not made within the 60 day period allowed by s 53(6) of the PPIPA. By letter dated August 2008 the MoT advised JK of his entitlement to proceed directly to review by the Tribunal. JK wished to seek review by the Tribunal, but also wished that a determination be made by the MoT.

3 By letter dated 29 September 2008 the MoT sent the internal review determination to JK. In summary, the internal review decided that there had been no conduct by the MoT in breach of Health Privacy Principle (HPP) 1, 2, 3, or 4.

4 On 10 October 2008 JK applied to the Tribunal for external review of that internal review determination.

5 The review was heard on 26 August 2009 when both parties were legally represented. By the time it reached hearing the issues had been narrowed to a consideration of whether there had been a breach of HPP1 and HPP 2.

6 HPP1 provides:

7 HPP2 provides:

8 The collection of information in issue is undertaken by use of a Medical Assessment Public Passenger Vehicle Driver.’ Below that heading is a paragraph which explains the purpose of the Form. It says:

‘The Ministry of Transport must be able to attest that all drivers of public passenger vehicles are fit and proper persons to hold an authority to drive such vehicles. This information is being collected in order to determine your fitness to drive a public passenger vehicle in accordance with the provisions of the Passenger Transport Act 1990 and Passenger Transport Regulation 2007. If the Director General cannot attest to you being a fit and proper person to hold an authority, the authority may be suspended, varied or cancelled or your application for authorisation may be refused. You have a right to request access to the information collected by contacting the appropriate Ministry of Transport office, the contact details are at the end of this form. The Ministry of Transport may disclose any health information received to another medical practitioner.’

9 The Form is in two parts: Part A, a ‘Patient Questionnaire’, and Part B, headed ‘Clinical Examination’. Part A is in blue print, with the rest of the Form being printed in black.

10 Part A contains the following instructions:

11 It requires an applicant to provide his or her name, gender, residential and postal addresses, date of birth, drivers licence number, contact phone number, and particulars of any driver authority held now or on the past. It then has 12 questions which require answering. These are:

12 An applicant is then required to sign and date a ‘Driver/Applicant declaration.’ It says:

13 Part B of the Form is headed ‘Clinical Examination to be completed by your usual Medical Practitioner (General Practitioner or Family Doctor) ONLY from this point onwards.’ It begins with the following instruction:

. It details the examination process and provides examination Proforma to guide you. The standard for this examination is the commercial vehicle standards.’

14 It requires medical practitioners to provide their name, contact details and the date of the examination. It then contains 13 detailed questions which require the doctor to report their findings following examination with respect to the following matters:

15 The examining doctor is then required to complete a medical examination certificate which contains a number of options. It reads:

Note -

The referring doctor should refer the applicant to a specialist/s of his/her choice and complete Part B of the Medical Specialist Assessment Report Form. Any costs involved are the responsibility of the driver/applicant. The completed Medical Specialist Report Form is to be returned to the Ministry of Transport.

Note-

Accredited assessors can be suggested by the Ministry of Transport. Any costs involved in the assessment are the responsibility of the driver/applicant

16 The last page of the Form is taken up with further instructions and information which include the following instruction the medical practitioner:

‘Distribute the completed certificate as follows :
- Provide the original certificate (together with additional information relevant to the patient's fitness to drive) to the patient for them to present to the Ministry of Transport.
- Retain a copy for the patient's medical record together with details examination notes.
- Information not relevant to the patient's fitness to drive should not be forwarded to the Ministry of Transport.’

17 It is not necessary to outline the balance of those instructions for the present purposes.

18 The Form was introduced in 2008, having been approved by the Director-General's delegate on 22 January 2008.

The Legislation

19 The HRIPA and the PIPPA - The HRIPA regulates dealings with health information by NSW public sector agencies and private organisations through the Health Privacy Principles. The HRIPA provides for the protection of the privacy of an individual's ‘health information’ that is held in the public or private sectors by reference to a set of health privacy principles which are contained in Schedule 1 of that Act.

20 The expression "health information" is defined in s 6 of the HRIPA. Section 6 relevantly provides:

health information

21 "Personal information" is defined in s 5 of the HRIPA.

22 It is agreed that the MoT collects, holds or uses health information within s 11(1) of the HRIPA, which provides:

Note.

organisation

Note.

23 The information sought by the Form in this case is health information within s 6(a)(i) and (iii) of the HRIPA. It follows that the MoT is required to comply with the HPPs set out in Sch 1 to the HRIPA with respect to that information.

24 Section 21 of the HRIPA provides:

25 Part 5 of the PPIPA contains the provisions of that Act which allow a person aggrieved by the conduct of a public sector agency to seek an internal review of that conduct (s 53(1)); the process to be followed in submitting, considering and determining an internal review (s 53(2) to (8)); the role of the Privacy Commissioner in that process (s 54); the right of a party aggrieved by an internal review to seek an external review in this Tribunal, and the powers of the Tribunal on external review (s 55); and, a right to appeal a decision of the Tribunal to an Appeal Panel (s 56).

26 The procedures for review under Part 5 of the PPIPA apply to the review of the MoT’s conduct under the HRIPA.

27 The orders that the Tribunal may make on external review are set out in s 55(2) of the PPIPA. It provides:

28 The Passenger Transport Act 1990 (the PTA) - A person who wishes to drive a public passenger vehicle, such as a bus carrying passengers, is required by s 11 of the PTA to hold an appropriate authority under Division 2 of Part 2 of the PTA.

29 The objects of the PTA set out in s 4 include:

30 According to subsection 11(2) of the PT Act, the purposes of an authority under that Division are to attest:

31 Section 12 of the PTA gives the Director-General of the MoT power to grant an authority to a person to drive a bus used to provide a public passenger service, and provides for the criteria to be applied, as follows:

32 Under section 11B(1) of the PTA, an authority is subject to the conditions prescribed by the regulations, and such additional conditions as the Director-General, having regard to the purpose of an authority, may from time to time impose. Conditions imposed by the Director-General under s 11B(1)(b) may be varied from time to time by notice served on an authority holder (by reason of s 11B(2)). They may be varied by amendment, addition, revocation or suspension of one or more conditions. Failure to comply with a condition of an authority is an offence (s 11B(3)).

33 An authority is renewable from time to time (at periods determined by the Director General), unless sooner cancelled or revoked (see s 11A).

34 The function under s 12(1) of granting authorities is performed by the Director-General's delegates and authorised officers in the MoT.

35 Reg 29 of the Passenger Transport Regulation 2007 (the PTR) specifies criteria for the purpose of a 12(2). Included in the criteria is a requirement that the applicant ‘must have passed an examination or assessment, at a level determined by the Director-General, in medical fitness’ (reg 29(2)(d)).

36 For bus drivers under the age of 60 reg 98 of the PTR provides:

37 For those 60 years and older reg 47 provides:

38 The Director-General has adopted a number of relevant policies and procedures.

39 First, in the exercise of the discretion under reg 29(2)(d) to set levels of fitness, the Director-General has adopted the Assessing Fitness to Drive (Commercial and Private Vehicle Drivers) Medical Guidelines 2003 (the AFTD Guidelines). These contain medical standards developed by the National Road Transport Commission (now the National Road Commission), following consultation with all driver licensing authorities across Australia, and with health professionals, relating to fitness to drive for licensing purposes. They were first adopted on 24 March 2003.

40 Secondly, on 17 November 2006, the Director-General adopted MoT Public Passenger Vehicle Medical Assessment Procedures (the PPVMA Procedures). These set out the procedure for obtaining a medical assessment, identify the specialist requirements where the applicant has a medical condition, and annex in Appendices 2 and 3 the medical assessment standards to be applied by the assessing medical practitioner.

41 Thirdly, the Form, which was approved by the Director-General's delegate on 22 January 2008. It provides a more detailed structure for the assessing medical practitioner than did the form previously used by the MoT. This change was prompted by a report on a serious bus collision on the Spit Road in 2005. It recommended that the MoT strengthen its system of monitoring adherence to health assessment regimes, including by introducing thorough and timely reviews of medical assessments of drivers holding authorities.

Material before the Tribunal

42 Among the material before the Tribunal was an affidavit from JK in which he said he had been required to obtain a doctors medical certificate, in relation to his fitness to drive a public passenger vehicle, when he applied for his driver authority in July 2003. When his authority came up for renewal in 2006 he underwent a further examination. The medical certificates he was then required to provide to the MoT ‘did not contain any details as to my medical background, such as health services which have been provided to me.’ In January 2008 he became aware of the information collected by the new Form. He though it required personal information ‘that was not relevant to my fitness to drive public buses.’ JK made specific reference to Question 11 of Part A which he interpreted as, ‘requiring me to disclose details of any period of hospitalisation whether it be as an outpatient or inpatient and every operation that I have received, as well as details of every serious illness or injury.’ With respect to the ‘Driver/Applicant declaration’ he said that, ‘it did not occur to me and I was not aware, that I was not required to provide the consents set out in that section.’

43 There were two affidavits filed by the MoT. The first from Mr David Tooze, the Acting General Manager Regulation and Compliance at the MoT. It is essentially a formal affidavit annexing the Form, the AFTD Guidelines and other documents.

44 The second affidavit is from Dr Michael Garvan, an occupational and environmental physician contracted to the MoT. He works with two registered nurses assessing the information provided in completed Forms. He explains that:

45 Dr Garvan then addresses the Form. He notes that the questions in Part A are ‘largely modelled on the sample questionnaire’ in the AFTD guidelines. This is largely correct, although there is no equivalent of question11. He then goes through each question explaining its rationale and use. Essentially, he says that the questions are designed to illicit information which may be relevant to an assessment of an applicant’s fitness to drive a public passenger vehicle. Three examples of his comments will suffice:

46 With respect to Part B of the Form Dr Garvan outlines what the questions are designed to capture and the relevance of that information to the assessment of fitness to drive a public passenger vehicle.

47 The AFTD Guidelines are a 130 page document. They extend beyond the setting of medical standards for fitness to drive. They include clinical management guidelines and policies and procedures for to be followed in undertaking medical assessments relating to fitness to drive. The medical assessment procedures envisaged by the AFTD Guidelines do not envisage that the information provided by an applicant in completing the questionnaire (or that resulting from the medical examination) being disclosed to the licensing authority in all circumstances. Rather, the AFTD Guidelines establish a procedure whereby the medical practitioner retains those documents, and issues a separate certificate. That certificate indicates whether the criteria are or are not met. Insofar as they are not met, details are to be given ‘as well as details of recommended restrictions and monitoring requirements for a conditional licence.’ Importantly, the AFTD Guidelines state at paragraph 3.3.1 that, ‘Medical information not relevant to the patient’s fitness to drive should not be included in this form for privacy reasons.’ At paragraph 3.3.4, the AFTD Guidelines recommend that if the licensing authority wishes to obtain details of the medical examination, ‘this should follow discussions with the State and Commonwealth Privacy Commissioners and the State/Territory branch of the Australian medical Association.’

48 The Privacy Commissioner participated in the planning meetings relating to this matter, but not the hearing. At those planning meeting the Privacy Commissioner’s representative confirmed that no approach had been made to the Privacy Commissioner about the Form by the MoT.

49 The PPVMA Procedures were issued by the Director-General and are dated 17 November 2006. They outline procedures to be followed in assessing the medical fitness of applicants for, and current holders of, driver authorities. They adopt as ‘minimum standards for assessing medical fitness of drivers’ those in the AFTD guidelines. They require medical assessments to be undertaken by a qualified medical practitioner and for the Form to be completed by both the applicant and the medical practitioner.

50 The PPMVA Procedures provide for a review of completed Forms by the MoT (at p. 5):

51 The PPMVA Procedures make further provision with respect the obligations of holders of driver authorities with respect to medical assessments (at p.9):

52 Also among the material before the Tribunal is the report of the Office of Transport Safety Investigation into the STA Bus Collision at Spit Road, Mosman (the Report) on 14 November 2005. The MoT says that the introduction of the Form was prompted by recommendations in the report, ‘that the MoT strengthen its system of monitoring adherence to health assessment regimes, including by introducing thorough and timely reviews of medical assessments of drivers holding authorities.’

53 The Report found that at the time of the Spit Road accident the bus was in an ‘inappropriate gear’ and driven at an excessive speed to that required to safely negotiate the road. The driver ‘exhibited signs of reduced concentration prior to the accident and may have suffered a micro-sleep’ and ‘was not wearing a seat belt..’ These factors combined to lead to the accident. The report found that (at p.34):

54 The Report recommended that the MoT:

Issues

55 JK contends that the Form involves a collection of a broad range of health information relating to an applicant in order to obtain an authority (or renewal of an authority) to drive a public passenger vehicle under the Passenger Transport Act 1990 (the PTA). He contends that the information collected in Parts A and B of the Form is not reasonably necessary for the purpose of assessing a driver's medical fitness to drive and is excessive. He contends that the procedures requiring the disclosure of that information (apart from the Medical Certificate ) to the MoT is not reasonably necessary for the purpose of assessing a driver's medical fitness to drive and is excessive.

56 He argues that ‘Driver/Applicant declaration’ is ‘bundled consent’ which requires, at the one time, an applicant:

57 JK contends that the combination of these declarations and consents into one has the practical effect of requiring an applicant to give the consents provided, without there being any requirement that he or she do so. The Form, it is argued, does not provide for the required declarations to be made, but the consent withheld.

Is the collection of Parts A and B of the Form reasonably necessary?

58 JK submits that the collection by the MoT of the information in Parts A and B is reasonably necessary for the purpose of determining whether the Director General is satisfied that the applicant meets the criteria for an authority (or renewal of such). JK says that the previous system, as favoured by the AFTD Guidelines, did meet the standard set out in HPP 1.

59 Subject to what is said below about Question 11 of Part A of the Form, the broad thrust of this submission must fail.

60 The purpose for which the MoT collects all the information is to assess the fitness of persons who seek to be authorised to drive public passenger vehicles. This is a lawful purpose. It is recognised by and consistent with the objects of the PT Act. Amongst the objects of the PT Act are the authorisation by the Director-General of the drivers involved in public passenger services, and encouraging public passenger services that meet the reasonable expectations of the, community for safe, reliable and effective passenger transport services.

61 The Act and Regulations establish a scheme whereby the Director-General is required to be satisfied that authority holders satisfy the criteria specified in the regulations and that which the Director-General considers relevant (s 12). This includes satisfying the Director-General’s requirements as to medical fitness (Reg 29(2)(d)). Importantly, it is the Director-General who is to be satisfied that the criteria are satisfied.

62 The lawful purpose for which the information sought in the Form is collected, namely assessing the medical fitness of persons who seek to be authorised to drive public passenger vehicles, is a purpose directly related to the Director-General's functions under s 12.

63 When one compares the questions asked in Part A, except for questions 11, and the examination details contained in Part B of the Form with the Medical Standards in Part B with the AFTD Guidelines, there is an obvious and direct correlation between the standards and the information sought to be elicited by the Form. The questions asked, and the examination to be conducted by a medical practitioner, are clearly referrable to criteria outlined in the AFTD Guidelines. For example, the questions relating to diabetes are directly referable to the standards in section 5 of Part B, as the questions relating to drinking behaviour are consistent with Part 1.2 of the standards.

64 The exception to this in my view is question 11 of Part A of the Form. This asks:

65 JK submitted that this question is too wide and requires the provision of information which may be irrelevant to the assessment of an applicant’s fitness to drive a public passenger vehicle. JK argued that it requires the provisions of details relating to every hospital attendance (in patient or out patient) irrespective of its relevance to fitness to drive. JK posited, as an example, that it would require disclosure of a vasectomy.

66 The MoT argued that the Form - by instructing the examining medical practitioner that information not relevant to fitness to drive should not be forwarded to the MoT – did not collect irrelevant information. This is not apparent from the Form. Question 11 is in Part A which is to be completed by the applicant, not the medical practitioner, and is the subject of a declaration as to it accuracy by the applicant. There is no indication in the Form that the medical practitioner is free to edit irrelevant information from Part A. It impresses me as a remarkable that the MoT would suggest that a medical practitioner is free to excise information that an applicant has declared to be correct. I do not accept that the instructions relating to the removal of irrelevant material refer to Part A of the Form, or that they have the effect contended by the MoT.

67 The MoT argued that question 11 was relevant to an assessment of whether an applicant meets the standards in the AFTD guidelines. While it may be that question 11 will capture information relevant to the standard, it casts such a wide net that, in my opinion, it unreasonably requires an applicant to disclose information which has no relevance to the standards. The question is not in any limited in its scope to the standards or to an applicant’s fitness to drive.

68 In his affidavit Dr Garvan said that question 11 was intended to capture information that might otherwise not be disclosed. Given the breadth and comprehensiveness of the rest of the patient questionnaire, and the detailed nature of the medical examination, it would be surprising if such information was not otherwise captured.

69 Dr Garvan made the point that, ‘Only a medical practitioner is able to assess what information might be relevant to whether a person can operate a public passenger vehicle.’ This is to be contrasted with the implicit faith in an applicant’s ability to gauge the effect of non-prescription medication on his or her ability to drive found in Question 3. It asks, ‘Do you use any drugs or medication not prescribed for you by a doctor which may affect your ability to drive a motor vehicle?’ Question 3, unlike question 11, is not at large but has as its focus fitness to drive. It entrusts applicants with a degree of judgement in assessing whether non-prescription medication may affect fitness to drive, and does not require applicants to list every non-prescription medication they take. Dr Garvan said of it that, ‘Any positive response is then assessed to determine whether the drug may affect a person's ability to operate a public passenger vehicle.’ This reliance on an applicant to determine which non-prescription drugs may affect ability to drive, is to be contrasted with Dr Garvan’s assertion, with respect to question 11, that only a medical practitioner is able to assess what information might be relevant.

70 There is no doubt that question 11 casts a very wide net. I accept that it is designed to capture information in relation to any serious injury, illness, operation which an applicant has ever had, irrespective of its relevance to medical fitness to drive a public passenger vehicle. JK’s example of a vasectomy is apposite. I also agree with JK that, on its face, question 11 seeks details of every time an applicant has been in hospital, whether as an inpatient or out patient, irrespective of the relevance of that information to fitness to drive. These requirements are in my opinion not reasonably necessary for the purpose of determining whether an applicant meets the medical fitness criteria determined by the Director-General. Requiring applicants to answer question 11 is therefore a collection of information that is not reasonably necessary for the MoT’s purpose and is in breach of HPP1.

71 The collection of the balance of the information, apart from that in question 11, is reasonably necessary for the purpose of assessing the fitness of persons who seek to drive buses. That information is referrable to the standards in the AFTD guidelines adopted by the Director-General. The Form, apart for question 11, is designed to obtain information relevant to s 12(2), reg 29(2)(d) and the AFTD Guidelines.

72 Under the PPVMA Procedures the information is collected directly from applicants. The collection is of that information, aside form that in question 11, is therefore reasonably necessary.

73 JK’s submission that the collection of the information is not reasonably necessary because the procedures set out in the AFTD Guidelines, whereby information equivalent to that found in Parts A and B of the Form (excluding the medical certificate) are to be preferred, must also fail.

74 This is so because the scheme of the PTA requires that the Director-General be satisfied that an applicant has passed a medical examination at a level determined by the Director-General. For that purpose the Director-General has, in the PPVMA Procedures, adopted a procedure whereby the Form is submitted to the MoT, so that the Director-General can be satisfied that the criteria have been met. The procedures set out in the AFTD Guidelines are not binding on the Director-General. While the Director-General has adopted the medical fitness standards set out in the AFTD Guidelines, the Director-General has established different procedures to be followed in determining compliance with those standards. That is something the PTA and the Regulations expressly authorise him to do.

Does the Form collect excessive information?

75 JK submitted that question 11 is too wide and requires the provision of information which may be irrelevant to the assessment of an applicant’s fitness to drive a public passenger vehicle. JK argued that it requires the provisions of details relating to every hospital attendance (in patient or out patient) irrespective of its relevance to fitness to drive. JK posited, as an example, that it would require disclosure of a vasectomy.

76 I have already found that the collection of the information in question 11 is not reasonably necessary. I consider it excessive for the same reasons.

The Bundled Consent issue

77 Both parties made submissions in relation to the bundled consent issue. As the ALRC pointed out in ALRC Report 108, For Your Information – Australian Privacy Law and Practice at Chapter 19 – Consent, consent is not a privacy principal in itself. It is relevant to the operation of some privacy principles, and can provide legal authority for an agency to deal with health or personal information in a particular way: e.g. see s 11 of the HRIPA.

78 While consent is required before an agency can deal with information in various ways, neither the PIPPA nor the HRIPA regulate how such consent is to be obtained. Under the general law such consents must be both freely given and informed. Section 72 of the HRIPA, however, contains express provisions prohibiting the use of threats, intimidation or false statements when obtaining consents required under the Act.

79 Whether any given consent will operate to satisfy the consent requirements will depend on the construction of the consent itself, the circumstances in which was given, and the understanding of the person giving consent, taking into account their particular vulnerabilities. It is not a simple matter.

80 The issue of bundled consents is also not expressly dealt with by the legislation. The ALRC in Report 108 which the competing arguments for and against the bundling of two or more consents together.

81 In JK’s case both parties have made submissions going to the procedure adopted by the MoT in bundling both a declaration and two consents together. I do not intend to traverse those arguments in any great detail, because I have not been asked to make any specific orders or findings with respect to the ‘Driver/Applicant declaration.’ Rather JK, in his final submissions, raised issues and questions concerning the procedure adopted by the MoT, but made no submission that there was any conduct in breach of a HPP or the a code of practice, and did not claim any specific relief or remedy in that regard.

82 He argued that the Declaration contains two sentences by which the applicant provides consent for the applicant's medical practitioner to provide "my health information to the Ministry of Transport or to a medical practitioner nominated by the Ministry of Transport". It is, I think, important to note that this first consent is not, in its terms, limited to the provision of information relevant to matters relevant to fitness to drive. The declaration then goes on to give authority for the MoT to obtain details of any matter "which may assist in determining whether I meet the medical criteria outlined in the" AFTD.

83 In reply, the MoT took issue with certain assertions made by JK, and submitted that applicant’s free to sever the consents from the declaration. I doubt that it would be apparent to an individual completing the patient questionnaire in Part A that he or she is free to delete the second paragraph of the ‘Driver/Applicant declaration.’ Indeed, the PPVMA procedures with respect to driver obligations tend to suggest the contrary.

84 JK submits hat onus is on the MoT to clarify the requirements of disclosure so that applicants are aware that there is no obligation to provide the consents contained in the Form. While the matter has not been fully ventilated before me I have reservation about whether such clarity is available when consents are combined with a required declaration, as occurs here.

85 In the circumstances, I am inclined to echo the words of Montgomery JM in KJ v Wentworth Area Health Service [2004] NSWADT 84 where he said, when asked to make a ruling about a proposed consent form, at [62].

Privacy Act

86 In my opinion as no breach of a HPP or of a health privacy code of practice was was alleged at hearing by JK with respect to the bundled consent, the Tribunal should not rule on these issues. They are nonetheless important. That is why I have canvassed the arguments.. While I make no findings on this issue, I commend to the MoT’s advisers Chapter 19 of ALRC Report 108, and suggest they contemplate how the giving of free and informed consent can be coupled with the making of a required declaration in a licensing process.

Relief sought

87 In summary I have found that question 11 of Part A of the Form collects information which is not reasonably necessary for the purposes of assessing driver medical fitness under the Passenger Transport Act 1990 and is excessive. I have found that the other information collected by the Form is reasonably necessary for the purpose and not excessive.

88 I have expressed my concerns in relation to the ‘Driver/Applicant declaration’ but have made no finding in relation to them.

89 In submissions JK suggested a number of remedies.

90 Given my findings I propose to make orders that the MoT perform HPP1 and HPP2 with respect to its collection of information for the purposes of assessing the medical fitness of applicants for, and holders of, authorities to drive public passenger vehicles.

CITATION:	JK v Department of Transport Infrastructure Development [2009] NSWADT 307
DIVISION:	General Division
PARTIES:	APPLICANT JK RESPONDENT Department of Transport Infrastructure Development
FILE NUMBER:	083297
HEARING DATES:	26 August 2009
SUBMISSIONS CLOSED:	3 September 2009
DATE OF DECISION:	10 December 2009
BEFORE:	Molony P - Judicial Member
LEGISLATION CITED:	Privacy and Personal Information Protection Act 1998 Health Records and Information Privacy Act 2002 Passenger Transport Act 1990 Passenger Transport Regulation 2007
CASES CITED:	KJ v Wentworth Area Health Service [2004] NSWADT 84
REPRESENTATION:	APPLICANT G Wright, barrister RESPONDENT M Allars, barrister
ORDERS:	The Tribunal orders that the Ministry of Transport perform HPP1 and HPP2 with respect to its collection of personal information for the purposes of assessing the medical fitness of applicants for, and holders of, authorities to drive public passenger vehicles.